Drug Possession Laws

Possession is one of the most ambiguous terms encountered in the criminal justice system. Depending on how and when the term is used, it has a variety of possible meanings. To distinguish the many nuances of drug possession laws, the legal system has modified the term by using descriptive words to categorize the various types of possession.

In general, a person is considered to have possession of something if that person knows of the presence of the item and has physical control of it, or has the power and intention to control the item. More than one person can be in possession of something if each person knows of its presence and has the power and intention to control it.

Examples of terms used in the law to specify the sundry nuances of possession include actual, adverse, conscious, constructive, exclusive, joint, illegal, legal, physical, sole, and superficial, as well as several other types. Some of the modifiers used to characterize possession are at times combined to narrow the specificity of the exact type of possession even more, as in joint constructive possession.

Actual Possession
Actual possession is the type of possession most commonly thought of when we think about possession in a legal sense. Actual possession (sometimes called possession in fact) means a person has direct physical custody or control of something on or around that person and is in actual possession of the item. For example, the wearing of a watch would put you in actual possession of the watch. Likewise, if you have your car keys in your pocket, you have actual possession as well. Actual possession is a very limited type of possession because frequently a person has obvious possession of an object but has no physical contact with it. To deal with this problem, drug possession laws broadened the scope of possession to reach beyond mere actual possession.

Constructive PossessionConstructive possession is a legal theory in the criminal justice system that extends the scope of possession to include situations where a person has no hands-on custody of an item. Constructive possession (sometimes called possession in law) means a person has knowledge of the existence of an object but no physical contact with it. He/she does not have actual possession of the item but has both the power and the intention to later take control over that item as in United States v. Derose, 74 F.3d 1177. For instance, you may have important documents and papers stored in a safety deposit box, and while you do not have actual physical custody and control over these items, you do have knowledge of them and the ability to exercise your control over them.

Criminal Possession
Criminal possession is possession of items that both federal and state statues make illegal to have. These items are considered dangerous or undesirable, and thus criminal to possess. Possession of certain items considered harmful to the public, like narcotics, stolen property, and burglary tools are criminal. A major source of controversy centers around criminal possession in the case of possession of drugs as this allows for arrests and convictions without proving the use or sale of the prohibited drug.

Possession of most controlled substances is a serious criminal offense under both state and federal law. Drug possession charges include the possession of controlled substances such as marijuana, methamphetamines, cocaine, ecstasy, or prescription drugs for which you do not have a prescription, like narcotic-based drugs such as Oxycodone and Vicodin. Possession of a controlled substance usually results in a felony charge, with the exception of small quantities of marijuana. Small amounts of marijuana possession are often considered misdemeanors as is the possession of drug paraphernalia (a pipe, a bong, etc.); however, most other drug convictions result in very serious penalties that may include prison and severe fines. Federal penalties for marijuana possession is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction, while federal penalties for cocaine and heroin possession are much more severe.

Defenses for Possession
In criminal cases, to be convicted of a crime of possession usually requires conscious possession. You must be conscious of the fact that you possess the item as well as conscious that possession of the item is illegal. Under the drug possession laws police may legitimately search persons and property and seize both persons and property, with or without a warrant. However, if police act without probable cause or exceed constitutional limitations by their actions, both searches and seizures may be deemed invalid causing any resulting evidence to be tainted and inadmissible as evidence in your case. Consequently, the most common approach for defending possession is violation of a person’s search and seizure rights.